The BLT: The Blog of Legal Times

Neal Katyal's Sentimental Send-Off

Colleagues and friends of acting solicitor general Neal Katyal organized a top-tier farewell party at the Justice Department on his last day in office Monday afternoon, featuring no fewer than three Supreme Court justices, Attorney General Eric Holder Jr., new SG Donald Verrilli Jr. and White House Counsel Kathryn Ruemmler, among others. Longtime deputy SG Edwin Kneedler, who has argued 113 cases before the Court, was the emcee, praising Katyal as a "terrific advocate" and for his "insistence on candor" with the Court.

"He's really damn smart," Ruemmler said of Katyal, adding that she and Katyal have been close personal friends for 17 years. "We have grown up as lawyers together." Ruemmler read a note of thanks from her boss, President Barack Obama.

Verrilli, whom Katyal introduced to the Court earlier in the day, thanked Katyal for being "an exceptional steward" of the office of solicitor general. Katyal served as principal deputy from the beginning of the Obama administration until last year when he became acting SG as Elena Kagan was nominated to the Supreme Court. "The place is in great shape, and that's thanks to you, Neal," said Verrilli.

In her remarks, Kagan sounded especially sorrowful about Katyal's departure from government service. She said it was "one of the honors and privileges of my life" to work with Katyal. "I learned from you how to be a great lawyer." Kagan  joked that when she became SG she batted around some ideas for a new deputy in a conversation with Holder, but he kept bringing the discussion back to keeping Katyal on. That was a discussion, she said, that "I was most happy to have lost."

Offering a glimpse into her own time as SG, Kagan said it was "one of the most difficult years in my life," in part because of the confirmation process both for SG and the Supreme Court. "It was a great year, but a hard year," she said. "I could not have had a better friend" than Neal to help her through it. "When it comes to other people's problems, Neal has 100 hours a day" to listen and help, she said.

Morning Wrap

Blagojevich Guilty: Following former Illinois Gov. Rod Blagojevich's conviction on 17 counts of corruption, the Chicago Tribune speculates on how much time he'll spend in jail.

Google Suit: 1plusV, an Internet company based in France, has plans to sue Google in a Paris court on allegations that the Internet powerhouse unfairly shut out competitors. The New York Times reports that 1plusV will claim 295 million Euros - $421 million - in damages.

Last Day: The Supreme Court's 2010-2011 term ended Monday with a decision striking down a 2005 California law barring the sale of violent video games to minors. The National Law Journal's Tony Mauro has the story. Marcia Coyle reports on the court's decision to reject Arizona's public financing system for state elections.

$11 Million Review: The Los Angeles Times reports that the California Public Employees' Retirement System is reviewing why it paid Washington-based Steptoe & Johnson $11 million to conduct an internal review.

Hatch Act: Congress is reviewing the Hatch Act, the federal law regulating political participation by federal employees. The Washington Post notes that the statute also applies to D.C. employees working on federal programs.

Judge Finds for Insurance Company in Dispute with DC's Sanford, Wittels

A judge with the U.S. District Court for the District of Columbia on Monday ruled in favor of an insurance company in a dispute with Sanford Wittels & Heisler.

U.S. District Court Judge Ellen Segal Huvelle found that Capitol Specialty Insurance Corporation was justified when it refused to provide the Washington-based firm with legal malpractice coverage after the firm failed to disclose past actions that resulted in a malpractice suit.

Capitol alleged in a summary judgment motion that Sanford did not notify the insurance company of its failure to meet a 2006 class certification deadline when the firm bought malpractice protection in December 2007.

The malpractice case stemmed from a discrimination suit against the U.S. Department of Commerce in which Sanford missed a filing deadline by 10 weeks. The case was subsequently thrown out and the clients sued Sanford for malpractice in January 2010.

"Missing a filing deadline that results in the dismissal of the class action claim could easily qualify as a breach of a professional duty," Huvelle wrote in her ruling.

Attorneys for Capitol and Sanford did not immediately respond to requests for comment.

—Matthew Huisman

Judge Rules Nonprofit Can Sue Ex-Intern Accused of Document Theft

The Council on American-Islamic Relations Action Network can move ahead with a lawsuit against a former intern accused of stealing more than 12,000 internal documents, a Washington federal court judge ruled on Friday.

The group is suing the former intern, Chris Gaubatz, and his father, author and self-described counterterrorism researcher Paul Gaubatz. The Washington-based Muslim advocacy nonprofit claims Chris Gaubtz posed as a Muslim college student as a ruse to secure an internship, and then stole the documents and e-mails for his father.

That Chris Gaubatz obtained the internal documents and gave them to his father is undisputed; in Paul Gaubatz’s 2009 book, “Muslim Mafia: Inside the Secret Underworld that’s Conspiring to Islamize America,” he describes the plan at-length. The two sides dispute whether the documents were taken unlawfully and also whether the publication of the documents constitutes protected speech.

The father and son filed for dismissal (PDF), claiming that Paul Gaubatz had a First Amendment right to publish information based on the documents his son obtained from the organization, among other things.

In an opinion (PDF) issued Friday, U.S. District Court Judge Colleen Kollar-Kotelly disagreed, writing that the First Amendment doesn’t always protect the publication of information that was unlawfully obtained. The question of lawfulness in this case is one for discovery and trial, she wrote.

“The protections afforded by the First Amendment, far reaching as they may be, do not place the unlawful acquisition of information beyond the reach of judicial review,” she wrote.

Kollar-Kotelly did dismiss one of CAIR-AN’s claims against the defendants, relating to allegations that Chris Gaubatz unlawfully made copies of e-mails and other electronic documents. The judge dismissed the group’s conversion claim, writing that the complaint is “devoid of any allegation that Defendants deleted, corrupted, or otherwise interfered with Plaintiffs’ control over their electronic data.”

The nonprofit is being represented by in-house counsel Nadhira Al-Khalili, who could not be reached this afternoon. Lead counsel for the defendants is Martin Garbus of New York’s Eaton & Van Winkle, who also could not immediately be reached.

U.S. Supreme Court to Review GPS Surveillance Case

The U.S. Justice Department successfully convinced the U.S. Supreme Court to review law enforcement's use of global positioning system devices to clandestinely track suspects in public during criminal investigations.

Last year, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit vacated a Washington-area man’s life sentence in a drug case because the authorities did not have a warrant to install a GPS device and monitor the man’s movement.

Prosecutors relied heavily on the data the GPS device provided to link the man, Antoine Jones, to a drug house in Maryland. The appeals court said the secret tracking violated Jones’ Fourth Amendment rights.

The court later divided 5-4 in refusing to hear the dispute en banc. DOJ pitched the case to the high court, which granted the government’s petition. (For more on the court’s decision today, check back with the National Law Journal’s Supreme Court Insider here.)

Jones’ appellate counsel, Stephen Leckar of Washington's Shainis & Peltzman, joined in the high court by O’Melveny & Myers partners Walter Dellinger III and Sri Srinivasan, urged the Court to keep in place the D.C. Circuit’s ruling.

“The United States government has revealed to the Supreme Court that it is heavily engaged in employing these devices without securing warrants,” Leckar said in a statement this afternoon. “The Fourth Amendment’s Warrant Clause was designed for a reason: to curb the ability of Government to abuse its powers. We contend that the use of such sense-supplanting, high-tech devices to engage in extended warrantless surveillance of people’s movement violates the Fourth Amendment and has grave implications for civil liberties.”

Leckar, who argued the case for Jones in the D.C. Circuit, said there is nothing “inherently wrong” with law enforcement’s use of GPS devices to aid the authorities in a criminal investigation. “On the other hand,” he said, “no one can dispute that they are extraordinarily intrusive. For that reason, they should only be used under circumstances that constrain law enforcement agents from the temptation to install them at their unfettered discretion.”

In urging the Supreme Court to review the case, Solicitor General Donald Verrilli Jr. said the D.C. Circuit ruling “leaves law enforcement officers with no practical guidance about when a warrant is required to monitor a vehicle on public roads using a GPS device.”

Verrilli also questioned the extent to which the D.C. Circuit ruling jeopardizes other law enforcement investigatory techniques.

“Many other non-search investigatory practices such as protracted use of pen registers, repeated trash pulls and aggregation of financial data can likewise reveal immense amounts of information about a person’s life,” Verrilli said. “The court of appeals offers no reason why its aggregation theory would not undermine those investigatory practices.”

Grassley Keeps Up Critique of SDNY Nominee

Alison Nathan, a former associate White House counsel who's been nominated for a federal judgeship in the Southern District of New York, continues to face pointed questions from the top Republican on the Senate Judiciary Committee.

Nathan was the focus of questioning from Sen. Charles Grassley (R-Iowa) on June 8, when she and three other district court nominees appeared for their confirmation hearing. Grassley asked at the time whether Nathan, 39, has enough experience to be a judge, as well as about her views on the death penalty and other issues.

In written questions to Nathan after the hearing, Grassley followed a similar line of inquiry.

Grassley asked Nathan about a 2008 blog post on the Web site of the liberal American Constitution Society. The post related to the death penalty case Baze v. Rees, in which Nathan was representing an amicus party in the Supreme Court, and to the standard for determining whether a punishment is cruel or unusual under the Eighth Amendment. “Under your analysis of the Eighth Amendment, how should a judge determine whether a particular method risks unnecessary pain?” Grassley asked.

Nathan responded by quoting Chief Justice John Roberts Jr.’s opinion in the case and adding that, if she were confirmed, she would “faithfully apply the standard articulated by Chief Justice Roberts in his opinion for the Supreme Court.”

Grassley also asked Nathan’s opinion on the use of foreign law while interpreting the U.S. Constitution. She responded that foreign law “would have no relevance to my interpretation of the United States Constitution” and that she would “follow binding Supreme Court precedent.”

Click here (PDF) for the full back-and-forth. A committee vote on Nathan’s nomination hasn’t been scheduled.

This Week in The National Law Journal

Interest in Public Interest: Careers in public interest law are attracting more and more young lawyers, Karen Sloan reports. Among the factors explaining the trend: loan forgiveness programs that help with heavy student debt loads.

Champions in the Law: It's time for our annual listing of champions and visionaries who have advanced and improved the practice of law in Washington. Among them: Judge Reggie Walton, the Justice Department's Thomas Perrelli and practitioners Jim Rocap and Lisa Blatt. 

Top In-House: We profile some of the most influential in-house attorneys in the D.C. area, from Terry Adamson of the National Geographic Society to American University's Mary Kennard to the Defense Department's Jeh Johnson and Harold Koh at State.

Cobell Costs: The $99 million in legal fees included in the settlement for the Cobell Indian trust litigation is disappointing some and outraging others, Mike Scarcella is reporting.

Social Media: Employees' uses of Twitter and Facebook to complain about workplace conditions could fall into the category of communications among workers that are protected by the National Labor Relations Act, according to an analysis by two Holland & Knight labor and employment lawyers.

The Morning Wrap

Warrant Issued: The International Criminal Court today issued an arrest warrant for Moammar Gadhafi on charges of devising the arrest, imprisonment and killing of hundreds of civilians. The court in The Hague also issued warrant for Gadhafi's son and intelligence chief.

Heralding Equality: Lawyers in New York this weekend celebrated passage of the state's marriage equality measure, The New York Law Journal reports. The New York Times reports today on the national movement to legalize same-sex marriage. Gay rights could become a political wedge issue in the 2012 elections.

Scrutinizing the Court: The Senate Judiciary Committee this week is scheduled to examine recent U.S. Supreme Court decisions on class actions, arbitration and securities litigation.

Feuding Justices: The Journal Sentinel of Milwaukee reports on allegations that a Wisconsin state Supreme Court justice put a fellow jurist in a chokehold during a dispute this month. "The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold," Justice Ann Walsh Bradley said, describing the encounter with Justice David Prosser. The Journal Sentinel reported other sources said Bradley charged Prosser, who put his hands up in self defense.

'Spy Girls': Two widows who met and became close in retirement in Northern Virginia share a bond: both women were spies decades ago. The Washington Post has the story.

Preventing Attacks: The U.S. Department of Homeland Security today plans to release guidance to help better design software against computer hacking. The system will include a list of the top 25 programming errors that enable attacks, The New York Times reports.

Senate Judiciary Hearing To Scrutinize Wal-Mart And Other Supreme Court Rulings

Recent U.S. Supreme Court decisions on class actions, arbitration and securities litigation will come under Senate scrutiny next week during a hearing called by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.)

Leahy has made clear on several occasions that he is unhappy with the Court’s rulings, particularly in cases pitting consumers against corporations.

The hearing, scheduled for June 29, will examine how three decisions “will impact Americans’ access to justice and affect corporate behavior,” according to the hearing announcement.

The three decisions—all of which were victories for the companies sued—are: Wal-Mart v. Dukes, Janus Capital Group, Inc. v. First Derivative Traders, and AT&T Mobility v. Concepcion. Previous hearings have analyzed the justices’ rulings in Ledbetter v. Goodyear Tire, a gender discrimination case; Gross v. FBL Financial Services, an age discrimination case; and Citizens United v. Federal Election Commission, a campaign finance case.

Scheduled to testify at the hearing is Betty Dukes, the lead plaintiff in Wal-Mart v. Dukes, a class-action, gender discrimination lawsuit filed on behalf of 1.5 million female Wal-Mart employees in which the court decided that that Wal-Mart’s female employees did not have enough in common to pursue their national class action. Also testifying at the hearing will be employment discrimination scholar Prof. Melissa Hart of the University of Colorado Law School, and Andrew Pincus, partner at Mayer Brown, who represented AT&T Mobility in that class action arbitration challenge.

Nobel Prize-Winning Economist, Former Divorce Lawyer Tangle Over Trial Date

Washington divorce lawyer Rita Bank is protesting an attempt to reschedule a legal malpractice trial against her. She's arguing that the plaintiff's reasons – a scheduled trip to China to be sworn in as president of an international economics group and meetings with high-level finance ministers regarding pressing global economic crises – shouldn't be considered a valid excuse for a delay.

Tied to another case, U.S. District Court Judge for the District of Columbia Richard Leon has been forced to reschedule Nobel Prize-winning economist Joseph Stiglitz’s trial against Bank, his former divorce lawyer, on several occasions.

Yesterday, Leon notified the parties that he would need to move the start date from June 28 to July 5. Later in the afternoon, Stiglitz asked the court for a new date, explaining that he already had plans.

According to his motion (PDF), from July 4 to 8, Stiglitz is set to be sworn as president of the International Economic Association at the organization’s Sixteenth World Congress in Beijing.

When the conference ends, Stiglitz says he’s then scheduled to travel to Egypt, Angola, Greece and Spain. In Greece, he’ll be meeting with the prime minister to “to discuss its current economic crisis, which is obviously a threat to global economic stability.” In Spain, he’ll “meet with senior government officials concerning Spain's current economic crisis as well.”

“Plaintiff respectfully asserts that good cause exists for the requested continuance, and justice requires it,” he states.

Bank, however, filed her opposition (PDF) shortly after. She notes that almost every attorney involved has been forced to cancel plans at some point in this case – in her case, a pre-paid family vacation – and that Stiglitz shouldn’t be treated any different.

“Stiglitz’s schedule is no more important than that of Bank, witnesses, experts, counsel, and certainly the Court,” she argued. “After all, Stiglitz is the Plaintiff. If he wants to pursue this case, it is incumbent upon him to make himself available for trial on the date set by the Court.” The phrase “Stiglitz is the Plaintiff” is in bold, italicized letters.

Bank has referred questions about the case to her attorney, Richard Simpson of Washington’s Wiley Rein, who was not immediately available for comment. Stiglitz’s Crofton, Md.-based lawyer, David Whitworth, also could not immediately be reached.